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Archive: Aug 2017

In the face of a changing political field, attacks on labor, and the issues with how the nation treats its injured and ill workers, California lawmakers believe they may have found a solution. Despite Washington pushing for a market approach to healthcare, Sen. Toni Atkins of San Diego and State Sen. Ricardo Lara are going in the opposite direction. Taking Canada’s current universal system as a model, they believe California is the perfect setting for a brand-new approach to healthcare – the single-payer system.

What Is the Single-Payer Healthcare System?

Canada operates under a “single-payer” healthcare system. This system started at the local level, then revolutionized healthcare from province to province. Under a single-payer system, the government pays healthcare bills, not individual insurance companies. Private healthcare facilities provide the care, without the need for deductibles or premiums. The money for this care in America could come from state governments, federal governments, and taxes on earnings for employers and workers, according to Lara.

The single-payer healthcare system operates in a way that’s very similar to Medicare. It has the potential to expand access to healthcare and make it more affordable for the average citizen. It could also improve the quality of care given. Parties against the single-payer system say that it could result in an extremely high level of taxation and longer wait lists for appointments. This isn’t the first-time lawmakers have tried to introduce such a system in California. This time, however, there are a few factors working in favor of single-payer healthcare.

A single-payer system would cost California an estimated $400 billion annually. As much as half of this money would come from a new payroll tax. It would be a state-run system that replaces public programs like Medicaid and Medicare, as well as existing health insurance coverage through employers. The current bill regarding implementation of this system, Senate Bill 562 (“The Healthy California Act”) underwent a vote in June 2017, with 23 “yes” votes and 14 “no” votes. It is now at Assembly.

How Would This Affect Workers’ Compensation?

Under a single-payer system, workers could benefit from universal, publicly-financed healthcare. The system would completely remove involvement by workers’ compensation insurance companies and employers in the administration of benefits. Proponents of the bill believe this will vastly improve injured workers’ access to high-quality healthcare services. A single-payer system could hold employers financially accountable for employee injuries and track injury events to improve worker safety.

With single-payer healthcare, workers would have a right to healthcare under the same terms as everyone else in the state. They would still have to fight for lost wages and disability benefits, but access to adequate and prompt healthcare would improve, according to supporters of the bill. Tax money, rather than insurance premiums, would pay for these services, eliminating healthcare delays and claim denials that have harmed injured workers in the past. Many believe that single-payer healthcare in California would ultimately strengthen the infrastructure around the country and spark a nationwide revolution. In the meantime, the bill must first pass through Senate in the state of California.

Domestic violence cases are, and must be treated as, dangerous emergencies. The public has been shocked and saddened to learn of the many domestic violence cases that result in serious injuries and/or death. Even when the domestic violence is not fatal, children in the home are often scarred for life emotionally. Most of the victims of domestic violence are women, but men can also be victims.

Temporary Restraining Orders are among the most important legal remedies available to victims of domestic violence. They are court orders against a reported abuser that prohibit contact or violent or abusive conduct against the victim. The courts have deliberately made the application process simple and designed to be used without the need for an attorney. Victims must explain why they need a temporary emergency restraining order. This is done by giving examples of violent or abusive past behavior. Victims have complained that judges have improperly denied requests for temporary restraining orders thereby exposing them and, in some cases children, to dangerous physical and emotional injuries.

THE LAW obligates judges to give their reasons for denying requests for temporary restraining orders in domestic violence cases. Supporters of this law point out that without a written explanation for a denial, we cannot know the judge’s reasons for refusing to issue the order. When judges state their reasons, victims and their attorneys can determine if it was improperly denied and can consider an appeal. The law also gives the victim the right to have a hearing within 20 days after a denial of a temporary restraining order and to ask for an order prohibiting the abuser to contact the victim.

Some critics of this law say that people involved in heated family and domestic legal disputes often use unnecessary temporary restraining orders merely to punish the other party. They say that parties often lie to convince judges to grant the restraining orders which they can later use in divorce or child custody proceedings. Critics also point out that Emergency Temporary Restraining Orders are issued and effective immediately without giving the other party an opportunity to respond for 20 days. During that time, their freedom to engage in certain activities including returning to the family home or having contact with a spouse and/or children is limited or prohibited.

These critics fear that if busy judges are required to write the reasons for denying Temporary Restraining Orders, many judges will simply grant most or all such requests instead. They say that granting unnecessary or unjustified Temporary Restraining Orders unfairly requires the restrained person to be listed in State and Federal Family Violence Registries. It is almost impossible to be removed from these registries even if it is later determined that the information supporting the Temporary Restraining Order was not true.

As you can see, the decision to grant or deny a Temporary Restraining Order can be a very difficult one to make. Judges have the powerful authority and the enormous responsibility to make these decisions. Now, under the law, they will have to let us know the reasons for denying a request to issue one. ¡NO SE DEJE! ®

Annual reports regarding the California Workers’ Compensation Program’s losses and expenses can help the state see where the greatest payments occur in the system. These reports keep track of yearly program spending and compare data across different financial categories to see where the state could make improvements. The 2016 Report by the Workers’ Compensation Insurance Rating Bureau of California (WCIRB) shows fascinating statistics that could inform employers and workers’ comp insurers in the state in the next year.

Key Findings in the June 28, 2017 Report

The WCIRB report collected data from insured employer experiences. It also took into account payments the California Insurance Guarantee Association (CIGA) made when calculating statewide loss payments. Taking a look at the latest report can highlight a few trends in insurance company losses and claim costs, such as:

The program spent a total of $4.8 billion on medical services. This expense accounted for 57% of total loss payments for 2016. This amount is a slight drop from 2015, which displayed $4.9 billion (59%) in analogous medical services.

The greatest medical service expense in 2016 was “payments made directly to injured workers,” with $1.3 billion (28%), followed by “physician services” at $1.2 billion (26%). Other top expenses include hospital costs (12%), medical-legal evaluations (7%), and pharmaceuticals (6%).

The average cost of a single medical-legal evaluation was $1,663, while psychiatric evaluations were more expensive – they averaged $3,420 each. Orthopedic evaluations were the most common type of medical-legal evaluation, accounting for about 54% of the total cost.

Indemnity benefits cost almost $3.6 billion, or 43% of total loss payments. This loss amount includes an estimate of payments CIGA made for indemnity benefits. Indemnity benefit amounts increased by 2% from 2015, which saw $3.5 billion (41%) total.

The greatest indemnity cost was for temporary disability benefits, at $1,783,620 in thousands (49.6%). Permanent partial disability accounted for $1,470,126 in thousands, or 40.9%. Other indemnity costs were permanent total disability (3.4%), life pensions (2.5%), vocational rehabilitation (1.8%), death (1.7%), and funeral expenses (0.1%).

There were 9,796 workers’ compensation claims for permanent disability for back injuries, 8,208 claims for slip and falls, 3,632 for repetitive motion injuries, 680 for psychiatric and mental stress injuries, and 5,609 for other cumulative injuries.

The average cost for a back injury permanent disability claim was $51,882 total – $28,084 for medical and $23,798 for indemnity. The average cost for a slip and fall was higher, at $72,843 total ($44,163 medical, $28,680 indemnity).

The data includes detailed information from the 2016 year, with limited information on 2017. The report suggests that the percentage of earned premiums for insurers has dropped since 2015. In 2015, insurers saw 62% losses and 36% premiums for a total of 98% in earned premium. In 2015, these totals were 60% in losses and 34% in expenses for a total of 94%. Insurers lost the most on “strain by lifting” as the cause of injury, with $448,236,847 (10.5%) in total incurred losses.

Workers’ compensation data can help insurers establish premium costs and employers enhance the safety of workers. Being proactive about using the data can benefit all parties involved.

No one, not even the most experienced lawyers or judges, knows every law in effect at any moment in time. But lawyers know that it is important to determine which laws apply to a transaction before they advise their clients to act. Unfortunately, many generally accepted myths about the law cause people to make costly mistakes in legal transactions.

3 DAY RIGHT TO CANCEL CONTRACT

Federal law and the laws of every state do provide for a right to cancel certain types of contracts or transactions, however, there are conditions that apply. And, the amount of time provided to exercise the right to cancel varies, as does the manner of perfecting this right. Assuming that you have a right to cancel a contract within 3 days can be a big and very costly mistake. I was called by a lady that had signed a contract to buy a new car. She told me that she wanted to know how to notify the car dealer that she was canceling the contract to buy the car. She told me that she had to do it immediately because it was already the third day after signing the contract.

I explained that in California, new car purchase and lease contracts are not included in the 3 Day Right to Cancel law. She was shocked and very disappointed. She may have other grounds for canceling the contract if the dealer misrepresented information or otherwise failed to comply with other laws, but merely changing her mind within 3 days is not enough in California. If she had made a 5 minute phone call to an attorney to verify her mistaken belief, she could have avoided a very expensive and now unwanted purchase.

In California, many types of contracts can be cancelled within a short period of time after being signed. The time period for cancellation varies depending on the type of contract.

The following list explains just a few of the contracts and the applicable time period for cancellation without cause:

Home Improvement Contracts 3 days if the house is security

Home Solicitation Sales 3 days

Health or Gym Contracts 5 days

Immigration Consultant Contracts 3 days

Internet Sales (until order filled) 30 days

Home Foreclosure Consultants 3 days

Telephone sales (until order filled) 30 days

Weight Loss Service Contracts 3 days

There are many other specific cancellation laws for other goods or services. Cancellation laws are best used as a last resort. The best advice is to not enter into bad contracts in the first place. Contracts that are subject to a right to cancel period require the seller to inform the buyer and to provide a form to cancel the contract. Consumers can cancel within the “Right to Cancel” period for any reason or no reason at all. After the right to cancel period has expired, consumers must establish a legal cause to get out of the contract. Legal cause may include fraud, misrepresentation, mistake, duress or illegality. ¡NO SE DEJE! ®

The California Workers’ Compensation Program is an excellent resource for injured employees throughout the state. It provides an outlet for financial recovery to any employee injured during job-related activities – without requiring the employee to prove anyone else’s negligence or go to court. To file a claim under the workers’ comp system for a recent workplace injury, you should learn the common acronyms used in the system. Understanding the language can make the claims process simpler for injured employees.

TPD (Temporary Partial Disability)

If a workplace accident results in temporary partial disability (TPD) to the worker, such as a broken limb, he or she can apply for TPD payments. These benefits will cover lost wages while the employee can only perform reduced duty or part-time work. TPD payments can bridge the gap between what the worker used to make and what he/she is now making because of reduced duty work. The insurance company must pay two-thirds of the gross wages the employee loses while in recovery from an injury.

TTD (Temporary Total Disability)

TTD payments come into play when the workplace injury results in total temporary disability, such as bed rest. In these situations, the employee cannot return to work at all during recovery, even to perform light work. The insurance company will issue TTD payments to cover two-thirds of the amount of total lost wages from missed time at work. The employee does not have to pay any income taxes on workers’ comp disability benefits. Determining TPD and TTD amounts can be difficult if the worker had more than one job, a seasonal job, or earned other income such as tips.

PPD (Permanent Partial Disability)

Workers who suffer permanent, but not complete, disabilities are those who may be able to return to work performing light duty or in a different position than he/she previously held. Permanent partial disability (PPD) benefits use a ranking system to determine the severity of the partial disability. Those with more severe injuries generally receive higher benefit amounts.

PTD (Permanent Total Disability)

If an employee suffers an injury that leaves him or her permanently and totally disabled, he or she can receive permanent total disability (PTD) benefits. The worker will fill out a permanent and stationary (P&S) report that describes the medical problems, extent of disability, and future medical costs. The workers’ comp system will give you a rating depending on your P&S report, which will then determine the amount of compensation benefits.

AME (Agreed Medical Evaluation)

An agreed medical evaluation (AME) is one that takes place under a provider that the injured workers’ attorney and claims administrator agrees upon. The purpose of an AME is to obtain a medical examination and report from an unbiased, agreed-upon party to help settle a claims dispute. The AME can determine how the work injury led to disability and potential causes of the injury. California law does not allow healthcare providers to advertise as AME centers.

ADW (Average Daily Wage) and AWW (Average Weekly Wage)

The workers’ comp program will calculate an injured worker’s average earnings to determine the individual’s wage loss benefits. Most cases abide by the average weekly wage (AWW) method, which looks at a worker’s average earnings by week for a certain period of time. However, in some cases, an AWW is not an accurate representation of the employee’s earnings. In these situations, the program will calculate benefits based on average daily wage (ADW), or the average daily earnings. The professional overseeing the case will then use either the AWW or ADW amount to compute wage loss benefits.

The most brilliant legal minds in history have agreed with and repeated the famous legal principle “IT IS BETTER THAT 10 GUILTY MEN GO FREE THAN ONE INNOCENT MAN BE IMPRISONED”. That is why the American legal system has established certain rules designed to avoid convicting innocent people. The “presumption of innocence” requires judges and juries to presume that people accused of having committed a crime are innocent unless guilt is proved “Beyond a Reasonable Doubt”. In spite of these and other rules, the official records reveal that an incalculable number of people have been wrongly convicted, imprisoned, and even executed.

MORE THAN 200 MEN AND WOMEN HAVE BEEN WRONGFULLY CONVICTED IN CALIFORNIA SINCE 1990 according to the records of the “Faces of Wrongful Conviction Project”. There is no way to adequately compensate these victims and their families for having spent years, and even decades, in prison or having been executed.

Only 22 states have laws that provide compensation for wrongful conviction and imprisonment. California law provides $100 for each day that a wrongfully convicted person spends in jail or prison if he can prove that he is in fact innocent. It is not enough to argue that the jury just got it wrong. Usually proving actual innocence is done by using DNA evidence which shows that the accused could not possibly have been the perpetrator. Sometimes actual innocence is established when the guilty person later confesses to committing the crime.

Legal experts have identified several recurring causes for wrongful convictions.

Witnesses often mistakenly identify the wrong person as the perpetrator. This mistake occurs more often when the witness and the suspect are from different racial or ethnic groups.

Willful misconduct by Police officers, prosecutors, witnesses and experts such as blood and fingerprint technicians have produced many unlawful convictions. Even judges have been guilty of misconduct or of giving improper jury instructions.

Suspects are threatened or pressured into confessing to crimes that they did not commit.

Some defense attorneys are not qualified or willing to competently represent their clients.

Latinos are too often the victims of these violations. Non-Latinos witnesses often have a difficult time accurately identifying Latinos. As a result, these witnesses often identify the wrong Latino. This is what happened to Arthur Carmona, a 16 year old accused of robbery in Orange County, California. He spent two years in prison before his lawyer was able to show that police misconduct caused the witness to mistakenly identify him.

Latinos, especially undocumented immigrants, are often pressured to plead guilty to crimes that they did not commit. They do this because it is less expensive. They do not have to pay an attorney and they will not have to miss work to participate in a trial. And, sometimes the penalty is “credit for time served” which means that the time in jail before going to court is the entire penalty. If he pleads guilty he can leave immediately and the case is over. And, undocumented immigrants that are not in custody often plead guilty to end the case quickly to avoid the possibility of being identified by immigration authorities.

This reality reveals major imperfections in our system of justice. And while we can still feel confident that we have one of the best legal systems in the world, it is impossible to justify so many innocent people pleading guilty or being wrongfully convicted of committing crimes, sent to prison, and even being executed. ¡NO SE DEJE! ®

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